As a parent, thinking about the possibility that a day could come when you aren’t able to raise your children can be heart breaking. But building a comprehensive estate plan to protect your minor children is one of the most important things you can do for them. But what do you do if you and your child’s other parent are separated or divorced? Even if the relationship didn’t end harmoniously, for the sake of your children it’s worth setting your differences aside temporarily to discuss these important issues.

Here are five major things to discuss with your ex:

Guardians

In the eyes of the law, if you pass away, even if you had full custody, guardianship of your child will pass automatically to your child’s other biological parent unless it is determined that the surviving parent is unfit or if the parent previously severed parental rights.  Nonetheless, it is still prudent for both of you to nominate a few alternates in the event that both of you are not available. And, it would give both yourself and your child greater security and peace of mind about the future if you and your ex discussed and agree on the same alternates.

Emergencies

Nominating permanent guardians for your child is a great start, but also discuss emergency planning with your ex, especially if you live in different states. Our clients establish Children’s Safeguard Plans that among other things, make sure we have nominated emergency temporary guardians that could care for the children in the event of an emergency and the permanent guardians are not available—friends, neighbors or other family members that could respond within 20-30 minutes and care of the child. If you share custody with your ex, it’s important that both of you have emergency plans in place and that all of your children’s care givers know what to do and who to call in the event of an emergency.

Family Visitation

If it’s important to you and your child, be sure to discuss with your ex the importance of extended family involvement in your child’s upbringing. For example, you may wish to discuss the fact that you would still want your parents actively involved in your child’s life even if your ex is guardian. Within your estate plan, you may even provide instructions to your trustee that it is suitable to pay necessary travel expenses and the like to ensure that such visitation is possible.

Inheritance

While you may feel that your ex could and should be your child’s guardian if something happens to you, if you’re like many divorcees, you do not want your ex having control over any financial assets you leave behind for your child.  So how can you leave your estate to your child without putting it in the hands of your ex? The key is to put your child’s inheritance in a trust and name a person that you know and trust as trustee to manage the assets on your child’s behalf.  Your trust can provide the trustee with instructions on how you want the assets managed, when and how to make distributions to your child’s guardian for the benefit of your child and so on. Note that your trustee and guardian will have to communicate regularly and work together frequently, so if you an your ex can both agree on a trustee that you’re both trust and are comfortable with it will make everyone’s lives easier.

Remarriage

It’s common upon remarriage to commingle assets and finances. And if you don’t properly plan for your child in your estate plan, it’s likely that if you die, all of your assets will end up going to your new spouse—effectively disinheriting your child.  If you or your ex are contemplating remarriage, it’s important to talk to your attorney and make sure there is a plan in place to ensure that your children will be provided for.

I came across a very touching story this morning on CNN.com: If I die, Who Will Teach My Daughters?

When a young author is diagnosed with a rare form of cancer, he wonders who is going to teach various life lessons to his young daughters as they grow older.

Feiler came up with a extraordinary answer. He would put together a group of men and call them his council of dads. Six men from different stages of Feiler’s life who could be Feiler’s voice, and could teach his girls the life lessons he might not be there to teach.

The article is well worth a read and includes a 5-step outline of how to form your own council of moms or dads.

For related ideas on the subject, check out my prior post on Randy Pausch’s Last Lecture.

This article was originally included in our email newsletter on August 21, 2009. It may have been edited somewhat from the version that was originally emailed, so be sure to sign up in the upper right corner of our website to make sure you are getting our email newsletter hot off the press!

With all of the health care talk–as well as the debacles left behind by recent celebrity deaths–we’re hearing a lot about these:

• Will
• Living Trust
• Guardianship
• Probate

While this is a great opportunity for the media to educate the public on these important legal issues, the truth is often getting mangled. Furthermore, for most of the public, the information is confusing, stressful and they would just rather not hear about it.

So let me clear up the confusion, as one who deals with this on a *daily* basis…

Let’s start with the basics. Typically, in North Carolina, when a person with assets over $20,000 ($30,000 in certain instances) passes away, their assets will be handled in one of three ways:

(1) If they had no will, their assets will be distributed as mandated by the state statutory law through a court proceeding called probate,

(2) If the person had a valid will, the estate will still have to go through the probate process, but the court will carry out their wishes as stated in their will,

(3) If the person had a valid living trust (and their assets were re-titled in the name of their living trust–this is called “funding”), their wishes would be carried out in private, without the court’s involvement.

So … why does it matter to you?

The answer to this question depends on how much you care about what your loved ones will have to deal with after you are gone and how much control you want to have as to who gets what, and when and how they get it.

If you do nothing, you get no input on any of these questions and the court and one of your eager family members/friend/creditor who petitions the court will make these decisions on your behalf through a process called probate. Why do you care about probate? Often, the probate process can take 9-18 months and can be extremely costly. Your loved ones may have limited control and access to assets, it’s stressful for your family, and the process is completely public. The probate process can often lead to squabbling between family members and airing of the family’s dirty laundry.

If a person leaves a valid will, it will still have to go through the probate process described above and the headaches that go along therewith, but the court will have the benefit of knowing how you want your affairs handled. Instead of relying on the laws of intestate succession (which is the law that distributes your assets to your family members in the order of their relation to you–you can read more here), the court will pass on your assets to the specific people you have identified in your will.

Through a valid will, you can control WHO gets your assets, but you will have no control as to HOW and WHEN they get it.

A living trust (that has been properly funded!), on the other hand, gives you more control and offers significant protection to your family. If you are working with an attorney who has expertise in this field, you can control WHO gets your assets, WHEN and HOW they get it without the court’s involvement. Even better–with a living trust, it is a private administration and can generally be handled in a short period of time. Furthermore, a living trust can incorporate a lot of other great protections including protection from taxes, creditors, predators, medical catastrophe, divorce, remarriage and more.

You may be asking yourself: why would someone ever do a will instead of a living trust? Typically, a person will choose a will over a living trust for one of two reasons:

(1) they don’t know the difference between the two or
(2) the perceived “cost” of doing a living trust.

There are some obvious advantages to doing a living trust over a will, but starting with anything is better than ending up with nothing. If you are not yet ready to make a leap into the world of living trusts, a basic, will-based estate plan is a starting point. In addition to giving the court direction about how you want your assets distributed, every estate plan should also include:

(1) an advance health care directive, which identifies the person(s) that will make health care decisions for you, if you’re incapacitated, and expresses your wishes regarding health care treatments;

(2) a durable power of attorney, which identifies the person(s) that will make financial and legal decisions, when you can’t; and

(3) if you have children, it should also include a Children’s Safeguard Plan, naming both short and long term guardians to care for your children in the event of an emergency, as well as clear and specific directions to those guardians about how you would wish your children to be raised in your absence.

While we all care about what happens to our assets, every person over the age of 18 needs to have an advance health care directive and durable power of attorney (this includes adult children heading off to college!).

I hope this clears up the confusion…

If you’d like to read a little more about these documents, here are some links to past blog articles that go more in depth:

What Is A Trust?

Parents: 13 Reasons Why Trusts Aren’t Just For The Wealthy

What Happens If I Die Without A Will?

Problems With Intestacy

What Is A Will? Introduction to North Carolina Wills

What Is Estate Planning?

Two Legal Documents Every Adult Needs: Part 1

Two Legal Documents Ever Adult Needs: Part 2

We’re here to help!

In case you missed the most recent issue, Jackie Bedard was honored to write a Financial Focus piece for the current issue of Cary Living magazine. To read the 4 Secrets Loving Parents Need to Know to Protect Their Kids, click on the image below.

*Note: Depending on your web browser, after opening the image, you may need to click on it again to magnify the image to read it.

Parents spend so much time agonizing over who they will leave their kids with when they go to work or when they go out on a Friday night, and yet the majority don’t even have a Will–and even those who do often make 1 of 6 common mistakes!

Discover how to easily name guardians for your kids. Avoid the common mistakes most parents make that leave their kids at risk, and make sure your kids will always be raised the way you want. While the kids eat pizza and play, we’ll discuss the easy steps parents need to take to ensure their children are protected.

This FREE workshop makes legal planning super easy!

Wednesday, May 19th, 2010, 5 P.M. TO 7 P.M
MONKEY JOE’S
1747 Walnut Street, Cary, NC

Space is limited to just 10 families, register NOW!

Full details and registration available at www.CarolinaFEP.com/KidsEvent or complete the form below:

Presented by Attorney and Counselor at Law, Jackie Bedard.  Member of the National Network of Estate Planning Attorneys.

We’ve launched several new tools at the firm over the past few months and I wanted to make sure to get the word out to blog readers, starting with the Kids Protection Planning Guide.

This FREE guide reveals the Nine Insider Secrets to Guarantee Your Kids’ Future Is Never Left in the Hands of a Judge Who Doesn’t Know Who You Are or What’s Important to YOU!

Many of the parents I advise are shocked to discover that in nine out of ten cases, children are not REALLY protected if something happens to their parents—EVEN IF the parents have a will or have previously planned their estate with a lawyer.

That’s why I’ve put together an urgent and important Kids Protection Planning Guide that every parent with minor children must read!

In this FREE Kids Protection Planning Guide, I reveal:

• The 9 simple steps you can take immediately to ensure the safety and care of your children… and why the police might have to take your kids out of your house if you were in a serious accident while you were out, if you don’t plan the right way.

• A 3-step process for choosing the right person to raise your kids… and the 6 common mistakes parents make when choosing guardians for their children.

• How you can make sure everything you leave your kids stays in your family forever… and isn’t lost to divorce, lawsuits, or estate taxes, ever!

• Why these 9 simple steps aren’t something you can just ‘set and forget’ without updating… and the rock bottom, bare minimum review you need to do to ensure the safety and security of your kids.

• How failing to plan could cost your family hundreds of thousands of dollars unnecessarily. (Hint: Did you know that estate taxes and probate taxes can be totally voluntary?)

To get your FREE Kids Protection Planning Guide rushed to you by first class mail, fill out form below!

(Hurry! Guides available while supplies last.)

Welcome to the first episode in our series, Soap Operas About Planning. I thought I’d try out something a little different to show how taking the time to prepare today can be a huge gift to your family and loved ones. Through a series of stories, I will compare and contrast the lives of families that have not adequately planned and those that have. Although thinking about one’s own demise is a scary and uncomfortable prospect, I hope you’ll find the stories (and my attempt at fiction!) interesting and educational. This post is also part of the blog carnival being hosted by Triangle TRACKS, a website full of resources and ideas for parents in the Triangle area. Finally, be sure to see our raffle details at the bottom.

Rain splatters heavily on the windshield as Casey turns the wipers to high. “I hope this storm clears out by day break,” he thinks to himself, glancing in the rearview mirror at his two boys, Mark and David, sleeping in their car seats. Casey’s wife, Melanie, is in the passenger seat, flipping through a magazine. Casey turns his attention back to the road, only to see headlights coming at them. He tries to swerve to avoid collision, but it is too late. The cars collide head on…

Meanwhile, back in Pine Valley, Melanie and Casey’s neighbor, Courtney, is getting ready for a girls night out with her best friend, Amy. Courtney’s husband, Andrew, is out of the country on business, so Rachel has come over to babysit Ava, their 3-year-old daughter. Rachel has been babysitting Ava for over a year, and Ava just adores her to pieces. Running late, Courtney scribbles her cell phone number on a piece of paper, handing it to Rachel before rushing out the door.

Shortly after Courtney leaves the house, Amy calls to say that she is stuck working late on a project deadline and won’t be able to make it. Courtney considers heading home, but decides to take advantage of having a sitter by heading to the gym for a quick workout. Before closing the locker, Courtney calls home to check in with Rachel, but there is no answer. Courtney doesn’t think much of it though, remembering that Ava was begging Rachel to take her outside to play on the swing set when Courtney left the house. “I’m sure she’s fine,” Courtney says to herself as she turns off her phone and tosses it back in her purse. She shuts the locker and heads to the workout area. While jogging on the treadmill, Courtney collapses. The people exercising around her rush over to her aid, but she is unconscious and all forms of identification are in an anonymous locker. The gym calls the paramedics, but she has died before they even arrive.

Melanie and Casey moved to Pine Valley after Casey accepted a job as vice president of Pine Valley Bank. Accepting the job required the family to relocate to Pine Valley from Washington, but it was a great opportunity for advancement, and the couple wanted to escape to the suburbs so their boys could have a yard to play in.  Once they were settled into their new home, Casey still had a bit of time off before his first day at the bank, so they decided to take a short family road trip to the beach. Melanie and Casey loaded up the car, strapped the boys in their car seats and hit the open road. Unfortunately, they never reach their destination. On the way to the beach, a drunk driver swerves into their lane and strikes them head on.  Melanie dies instantaneously, while Casey and the boys are rushed to the hospital. Unfortunately, Casey is pronounced dead on arrival.

The police try calling Melanie and Casey’s home back in Pine Valley, but, of course, no one is there. Having no idea who the next of kin is, the police have no choice but to call child protective services to take care of the boys until family can be located. The boys are in a complete state of fright, surrounded by bright lights and strangers.  They are crying and calling out for their mommy and daddy. The boys are placed in the care of strangers under temporary foster care by child protective services.  After a couple  days, family is located.  But Melanie and Casey haven’t executed wills or named guardians for the boys. Without any direction from Melanie and Casey, it is up to the courts to decide who will be appointed guardian for the boys.

Several family members appear at the hearing, each claiming that they would be the best guardians. Before long, a family feud erupts and hideous accusations are thrown back and forth. The case drags out, and nine lawyers, a thousand pages of court documents, tens of thousands of dollars in legal bills, and many, many tears later, the court finally decides that the boys will be best off living with their aunt. But by now, the family rift is so deep that she will not allow the boys to visit with their grandparents.  The boys’ money will be managed by a professional financial guardian who charges $125/hour. And during the court battle, a lawyer was appointed on behalf of the boys to the tune of nearly $25,000, with more – amount yet unknown – to come as they mature. Whatever’s left will be distributed to the kids in a lump sum when they turn 18.

Is that what Melanie and Casey would have wanted? We’ll never know what they would have wanted, but we can be sure they would have done everything they could have to avoid the pain their children and extended family have been through. If only they had known how easy it would have been! It doesn’t have to be this way.

Courtney and Andrew were thorough. When Ava was born, they prepared a comprehensive Kids Protection Plan, providing specific instructions to babysitters, day-care providers, teachers, and school administrators, with specific instructions detailing whom to call in the event of emergency.  Knowing that most of their family lived out of state, Courtney and Andrew appointed their close friends and neighbors, Bob and Barbara Kleinfeld, as short-term guardians of Ava, and they had provided the Kleinfelds with legal documentation giving them the authority to care for Ava in the event of an emergency.

When Courtney doesn’t arrive home, Rachel begins to worry, so she tries calling Courtney’s cell phone.  After a couple more hours and several unsuccessful attempts to reach Courtney, Rachel opens the emergency binder and finds instructions to call the Kleinfelds. Within minutes, Barbara is at the house, legal documents in hand. Together, Rachel and Barbara call the police. The police arrive and are relieved to find that Barbara has documented legal authority to care for the children. Barbara locates Andrew’s travel information and informs him of the situation. Weather prevents Andrew from getting a flight for almost forty-eight hours. In the meantime, although she asks for her mother, Ava is comforted and cared for by Barbara. Eventually, Andrew makes it home, and he and Ava begin the process of grieving together.

Careful planning doesn’t guarantee your family will never face tragedy.  But it can help your family be prepared for tragedy, so that if it does strike, your kids won’t fall victims of a great big legal mess when they’re at their most vulnerable.

Postcap & Raffle

If you found this episode engaging, I hope you’ll return for future episodes. The story of Melanie and Casey is loosely based on real life events that occurred in California. I also highly recommend reading Alexis Martin Neely’s book, Wear Clean Underwear. See the bottom of my prior post to find out how to get a copy of Wear Clean Underwear for Kindle for $.99. You can also read the first chapter online for free here.

And, if you want to WIN YOUR OWN COPY of Wear Clean Underwear, visit our website and sign up for our weekly email newsletter in the upper left corner by midnight, Saturday, September 5^th to be entered into our drawing for a free copy. (If you’re already an email newsletter subscriber, simply reply directly to last week or this week’s ezine with the subject line “I want to win WCU”, and we’ll enter you in the drawing). We’ll be giving away copies to 5 lucky winners. Important: After entering your email address on our website, you will be emailed a confirmation link. You must confirm your subscription to be eligible for the drawing. North Carolina residents only, please.

The following article, written by national legal expert, Alexis Martin Neely, originated from Chris Brogan’s Dad-O-Matic blog.  Alexis was featured in an interview on Good Morning America this morning, where shared some important information that all parents need to hear:

***Featured on Good Morning America***

Here’s the segment on 5 Legal Documents Everyone Should Have

with Chris Cuomo & Alexis Neely

Becoming a dad is the ultimate step into adulthood.  It simply doesn’t get more real than that, does it?  That little face looking up at you makes you realize that life isn’t just about you anymore.  Suddenly, you are responsible for the well-being and care of a little person who is totally reliant on you.  And in some ways, this new “mini-you” that has come into the world makes you feel immortal.

On the flip side though is the lurking thought “what will happen to mini-me if something happens?”  If you are like most people (69%), you push away the thought because it’s too scary to contemplate your child being raised by anyone besides you.

But, here’s the thing … if you aren’t willing to take the time and invest the energy in setting things up for your little one (and her mom) the right way, you will leave your family with a world of hurt if something happens to you.

The good news is that setting things up the right way and doing the right thing by your family doesn’t have to be as painful as you think it will be.  If you are in the know about what you need and how to get it taken care of, getting your personal affairs in order can even be downright enlightening.

Let’s start with the bare minimum of what every dad needs to have in place to make life as easy for his kids and their mom if anything happens.

Document Set #1: Kids Protection Plan
Regardless of the size of your bank account, if you’ve got a child at home who depends on you, you need to have a comprehensive Kids Protection Plan® (KPP) in place to ensure her well-being and care in case you can’t be there.

A KPP begins with naming legal guardians to raise your children if anything happens to you and their mother.  But, that’s just the beginning. A comprehensive KPP will also name local friends or family as guardians for the immediate/short-term care of your children so that the authorities never have to take your children out of your home and into the care of strangers.  With a KPP in place, you’ll carry an ID card in your wallet listing the names and addresses of your immediate/short-term guardians as well as provide written instructions to all of the people who care for your children, such as babysitters and schools.  Finally, a KPP will confidentially exclude anyone you know you would never want to serve as guardian of your children to ensure there are no court-room battles over your child’s care and will also provide detailed instructions about things like health care, education, discipline and your values, so your children are raised the way you want, no matter what.

To get started with your Kids Protection Plan® by naming long-term guardians (which EVERY parent must do), go here and be guided through a process of first choosing the right people to raise your kids if you can’t and then easily document your choices … legally.

Document Set #2: Financial Durable Power of Attorney

A financial durable power of attorney is something every adult needs, even if you don’t have little kids at home.  This document is what will let your family access your bank accounts, pay your bills, and make financial and legal decisions for you if you are hospitalized or otherwise incapacitated.

This story should bring home the importance of having a durable power of attorney in place:

My law firm was contacted by a young woman after her father was hurt at his janitorial job, hospitalized and unable to communicate.  This man thought he didn’t need estate planning because his income was very low and he had less than $10,000 in the bank.

Unfortunately though, his failure to plan left his family in a lurch. They needed the little bit of money he had in the bank, but couldn’t access it without going to Court because the account was in his name and he didn’t have a durable power of attorney naming anyone to act for him legally.

The cost of going to Court was going to cost their family more than the money that was in the bank!

Don’t leave your family in this kind of a painful situation unable to access the limited resources you have because you didn’t do what you need to do.  Be sure you have a financial durable power of attorney in place and make sure it’s comprehensive and will work when your family needs it.

Document Set #3:  Health Care Directive (Living Will)

A Health Care Directive (also known as a Living Will or Health Care Power of Attorney) is another document set that every adult needs, even if you don’t have little ones at home counting on you.

These set of documents do two important things:

1. Appoint the person you want to make health care decisions for you, if you cannot make them for yourself; and
2. Tell your appointed decision-maker how you want those decisions to be made.

Each state has its own rules for how these documents should be prepared.  In some cases, your instructions can be all in one document and in others they need to be two separate documents.  The most important thing is that you get something down in writing.

And, once again, make sure you’ve got something that will really work when your family needs it.  I recommend giving broad discretion to someone you trust to make decisions about all of your health care decisions, including not only life-saving medical care, such as respiration, but continued nutrition and hydration in case you are incapacitated.  If you recall the Terry Schiavo case from several years ago, in which her husband and her parents fought over whether she should be kept alive or not and the case was brought all the way to the Florida Supreme Court, the issue was not whether to continue to keep her lungs pumping, but whether to continue to provide nutrition and hydration – be sure your medical directive addresses these issues.

Document Set #4:  Will:

When it comes to estate planning, most people think of having a Will.  Unfortunately, having a Will often provides a false sense of security to people who think “I have a Will, therefore, I’ve taken care of everything.”  That’s a myth. In fact, your Will is the least important of the 5 legal documents every dad must know about.

A Will sets forth what you want to happen to your assets at the time of your death.  But, here’s the thing, where there’s a Will and your assets are owned in your name, the Will merely acts as instructions to the Court as to what to do with your assets. That means your family is stuck dealing with the Court after you are gone.  Nobody wants that, trust me.

The Court process for handling your assets after your death is called probate.  It’s typically expensive, time-consuming, and always totally public, which means anyone in town can find out how much you’ve left behind, who it went to and when they get it.  That puts your loved ones on the radar of every con artist in the neighborhood.

A Will alone is really only appropriate for dad’s who have no (or very limited) assets titled in their name.  If you have assets, such as a home, bank accounts, life insurance, and retirement accounts, you need to have a Living Trust to keep everything out of court, totally private and make it super easy for your loved ones.
You may have heard that if you only have life insurance and retirement accounts that you could simply name beneficiaries on those assets and avoid probate.  That’s true, but not going to work if you have minor children because they are too young to be the beneficiaries of your assets and would end up in Court with a guardian appointed to handle them.  Not what you want.

Document Set #5:  Trust

If you have financial assets or real estate, you want to have a Living Trust.  A Living Trust is the single best way to make things as easy as possible for the people you love, bar none.

But, and it’s a big BUT, most people who have a Living Trust in place have one that won’t work when their family needs it.
It’s the same for each of these documents I’ve talked about; they are only going to work the way they were designed to work if the law stays the same and your life stays the same.

As your life changes, the documents need to change.
As the law changes, the documents need to change.

And, for your Living Trust, it won’t work unless all of your assets are titled in the name of it, not just once, but every time you acquire an asset in the future.

I’ve met with loads of people who thought they had everything taken care of because they had prepared these 5 documents or had them prepared by a lawyer, but because they had not been kept up to date or their assets were not owned properly, the documents didn’t work!

In fact, that happened in my own family when my father in law died.  He had spent thousands of dollars to work with a lawyer who put in place a set of documents for him and then didn’t keep them up to date and didn’t make sure his assets were owned properly on an ongoing basis.  What that meant is at the end of his life, we were stuck dealing with the one thing he thought he was protecting us against – the probate court and a fight with his ex-wife.

Even Michael Jackson, who no doubt spent hundreds of thousands of dollars with his lawyers, had a trust-based estate plan that he was probably told would keep his family out of court.  As we now know, it must have failed because his family has been dragged into court already multiple times since his death with everything open to the public.

So, yes, these 5 documents are absolutely vital because they will make life as easy as possible for your family, keep your loved ones out of court and get them easy access to your assets in the midst of a crisis, but only if they are kept up to date and your assets are owned properly.

Most people do not have the time, knowledge and discipline to do this for themselves the right way.  If you do, great.  But, who is going to guide your family to make the right decisions and carry things out the right way after you are gone?

Because when all is said and done, that’s really what this about, isn’t?

There’s nothing more important to you than your family.  They are why you do everything you do, right?  So, for them, find a lawyer who will guide you right during your lifetime and be there for your loved ones when you can’t be.  It’s far easier for you to take care of things now, while you are living and able than it will be for them to take care of things after you are gone.  Legal planning is not about the money; it’s about making life as easy as possible for the people you love … no matter what.

Alexis Martin Neely is America’s Personal Family Lawyer, author of the bestselling book “Wear Clean Underwear! A Fast, Fun, Friendly – and Essential – Guide to Legal Planning for Busy Parents” and the nation’s leading legal expert guiding you to smart financial and legal decisions for your family. Subscribe to Alexis’ free online magazine, Family Wealth Secrets, and have wealth advice delivered right to your inbox each week.

Special Update!

In honor of the Dad-o-Matic article and her appearance on Good Morning America, Alexis has convinced her publisher to give her vital book on legal planning for parents (Wear Clean Underwear, Morgan James Publishing 2008) away on Kindle for just .99.  Get your copy today right here.

A great video clip from CNBC featuring estate planning attorney, Alexis Martin Neely.  Alexis discusses the importance of estate planning and leaving a legacy to future generations.

As a conclusion to this series on choosing guardians for your minor children, I wanted to note a few additional items that you may wish to consider in choosing your guardians.

1. The guardian and the trustee do not have to be the same person.

As I mentioned in Part 2 and will elaborate on more fully in a future post, it often is prudent to have estate planning documents that include a trust to manage any assets passed on to your minor children.  The trust can be contained right within your last will and testament, or depending upon your needs and complexity, a separate trust document may be warranted.  In choosing guardians, keep in mind that the child-rearing and financial aspects can be separated, if you feel that is most appropriate. The person that you appoint as guardian is responsible for raising your children and the trustee is the person designated to manage your children’s assets on behalf of your children.  If you find that you are on the fence between your top choices to be appointed guardian, or if you and your spouse are divided, then appointing one person as the guardian and one as the trustee may be a good compromise.  In fact, naming separate persons to be guardian and trustee is often desirable because it creates a sort of checks-and-balances system with two people have some form of responsibility in your children’s upbringing.

2.  Consider writing a letter of explanation.

As much as I would like to be able to tell my clients that their guardianship designations are iron-clad, that is not the case.  The reality is, under North Carolina law, that the courts do have the ability to override your decision.  However, this is extremely rare.  Judges typically place high value on the desires of the deceased parents in making a decision.  If you have any concerns about a judge not honoring your decision, you may wish to write a letter of explanation.  A letter of explanation is not legally binding, but it allows you an opportunity to explain the reasoning that went into selecting the guardian.  Similarly, if you have reasons for believing why someone, including a former spouse, may be an unfit parent, those reasons may also be included in your letter of explanation.  Again, the judge is not obligated to follow your letter of explanation, but it will give the judge additional information that may be useful in making a final decision.

3.  Discuss your decision with family and friends.

Take the time to discuss your guardianship decision with family and friends.  A simple discussion upfront can avoid hurt feelings and disputes in the future, especially if it seems that certain friends or family members might have expectations of being appointed as guardian.

4.  Periodically review and update your guardianship designations.

Over time, life circumstances may change for both your and your selected guardians.  Be sure to review and update your selections accordingly.  You may find that as your children age, you think a different person would be better suited to raise your children.  Perhaps the health of your original guardian has deteriorated.  Maybe the sibling that you originally worried wasn’t yet mature enough has now settled down or perhaps the person you appointed now has four children of their own and would overburdened if asked to raise your children.

See also:

Choosing Guardians, Part 1: Why It’s Important

Choosing Guardians, Part 2: 5 Steps to Choosing Guardians